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In the latest round of Berkeley’s battles over cellphone towers, Berkeley City Council split the difference Tuesday night, voting to hold a Dec. 16 hearing on an appeal from Zoning Adjustments Board (ZAB) approval of a Verizon Wireless application for a 10-antenna facility on top of the French Hotel on Shattuck Avenue, but holding over any action on a similar citizen appeal of ZAB approval of a T-Mobil eight-antenna request for 1725 University Ave.

More significant, however, was the revelation during Tuesday night’s council deliberations that the city had entered into a written agreement with Verizon over the French Hotel facility last May that at least one councilmember now claims was never approved by council, and that he has never seen.

As cell phone usage has exploded in the past several years, increasing the number of applications for new cell phone antenna facilities throughout Berkeley, the city has witnessed a number of protests and appeals by citizens opposed to adding new antennas in their neighborhoods. The ability of ZAB and the council to deny such applications has been limited by the federal Telecommunications Act of 1996, but city powers have been changed by a recent United States 9th Circuit Court of Appeal ruling.

Berkeley is in the process of making alterations to its Wireless Telecommunication Facilities Ordinance to conform to the new circuit court ruling.

But the big surprise at Tuesday’s meeting was an assertion by acting City Attorney Zach Cowan that failure by the city to act on the Verizon application—one way or another—might jeopardize an existing agreement between the city and Verizon that settled an earlier lawsuit against Berkeley by the telecommunications giant.

That brought an immediate protest from Councilmember Kriss Worthington, who said, “I’ve never seen” the agreement, and asked for a City Attorney report on any settlement meetings or written agreement between Berkeley and Verizon.

Cowan said that the agreement came before council during a special closed session meeting last May 19—a Monday meeting that Worthington said he had been unable to attend because of prior commitments—and the agenda for that closed session meeting includes an item listed as “Conference with Legal Counsel-Existing Litigation; Government Code section 54956.9(a):Verizon v. City of Berkeley; USDC Case No. C07 4034 SBA.”

However, that didn’t clear up the confusion.

After Worthington said that the Verizon agreement had never been disclosed to the public—a requirement of California’s open government Brown Act—Cowan argued that the agreement came under a Brown Act exception because that precludes the release of closed meeting actions “when no final decision has been made.” Copies of the agreement were not part of the Verizon appeal record for Tuesday’s Council meeting. The problem with that argument, as Worthington later pointed out to constituents and reporters following the meeting, is that if no final decision was made on the agreement, it has no legal standing, and can’t be used as a reason for speeding up a Council decision on the Verizon application.

Worthington said he was opposed to the concept of the city having “secret agreements” that were not later made available to the public.

Cowan told councilmembers that the Verizon agreement had already been released to the Berkeley Planning Commission (reported in the Planet on November 13.) He added following the council debate that he now believed public disclosure in this matter was proper, and would make the agreement available to the public.

The two appeals sparked a heated debate between Councilmembers Max Anderson--who is opposed to the approval of new mobile antennas--and Gordon Wozniak, who is in support. There is currently a citizen lawsuit challenging approval of an antenna installation on South Shattuck in Anderson’s district.

Anderson told councilmembers that the applications and appeals “continue to put us in the awkward situation of trying to adhere to pressures to uphold federal laws that protect the most greedy elements of our society” referring to the telecommunications companies “while trying to uphold our own precautionary principle. It makes us look like flakes who don’t believe in our own principles.”

Wozniak countered that “while I’m sure the companies want to maximize their profits, the reason they are putting up these new facilities is because there’s a growing demand for cellphones. If you want to get rid of cellphones, you should convince people to burn them.”

Worthington added that he believed the legal issues over the federal Telecommunications Act have generally been settled, and that he didn’t “want to spend tens of thousands of public dollars on quixotic legal challenges.”

If the council does not act on the T-Mobil University Avenue appeal by the first meeting in January, the ZAB approval of the application will automatically go into effect. Cowan also said that while any changes in Berkeley’s Wireless Telecommunication Facilities Ordinance would apply to the two applications and appeals if the law is passed before the council rules on the appeals—something which appears impossible for the Verizon Dec. 16 hearing and possible only if council eventually calls for a hearing on the T-Mobil appeal—Cowan said he did not believe the proposed ordinance changes would have any effect on the merits of the two applications.